Apple Enlists Ted Olson, Who Will Hire David Boies?

Reading the news that Ted Olson will join the Apple legal team fighting the Justice Department made me wonder whether Apple aapl or Justice should seek help from David Boies.

Olson and Boies, two of America’s most prominent lawyers, are well-known for having joined forces to overturn Proposition 8, a California voter initiative designed to ban same-sex marriage. The story of that effort was captured in an HBO documentary and in a book they wrote, The Case for Marriage Equality.

Before that, however, they were fierce rivals in 2000, when Olson bested Boies in Bush v. Gore, the Supreme Court case that gave the presidency to George W. Bush.

In the late 1990s Boies successfully represented the Justice Department in its antitrust suit against Microsoft msft.

The Justice Department’s effort to compel Apple to help the FBI unlock an iPhone that belonged to one of San Bernardino killers is likely to set important precedents and the case could easily end up before the Supreme Court.

I have followed both lawyers’ careers and have known each of them for more than a decade, signed up Olson to represent Time Inc. time in 2005 in a case involving anonymous sources, and spend a week biking with them and their spouses every summer.

As much as it is fun to see them enjoying each other’s company, it is even more interesting to see them when they disagree. So I am rooting for Justice to reach out to Boies before Olson thinks to do so.

DraftKings attorney David Boies: ‘We feel good’

On the day before Thanksgiving, DraftKings and FanDuel will meet the New York Attorney General in court for a dramatic showdown. And DraftKings outside legal counsel David Boies, in an exclusive interview with Fortune, says he believes the facts are clearly on their side. “We look very strong.”

Two weeks ago, Attorney General Eric Schneiderman ordered DraftKings and FanDuel to stop accepting paid contest entries in the state of New York. It was a major threat to the future of the exploding daily fantasy sports industry, and it led a number of smaller daily fantasy sports operators, who were not sent any letter from Schneiderman, to promptly cease business in New York. The state is the biggest market for the two companies, and DraftKings and FanDuel fought back by filing their own lawsuits against Schneiderman. (He has since added Yahoo, which launched a daily fantasy platform this year, to his inquiry via subpoena.)

On Nov. 25, New York Supreme Court justice Manuel Mendez will adjudicate a one-hour hearing that may prove to be the most pivotal moment in this industry’s early history. Schneiderman, DraftKings, and FanDuel will each have only 20 minutes to present to the judge, but the burden of proof is on Schneiderman to show that DraftKings and FanDuel’s contests are illegal under New York law.

The gambling law in New York is matched in just eight other states: a contest is gambling if the outcome depends on a “material degree” of “the element of chance,” as opposed to skill. DraftKings and FanDuel have always argued their contests are “games of skill,” but Schneiderman doesn’t buy it. The Attorney General did not merely label them gambling operators—as Nevada’s Gaming Control Board ruled last month, offering the companies the chance to apply for gambling licenses—but accused them of being “the leaders of a massive, multi-billion-dollar scheme intended to evade the law and fleece sports fans across the country.”

To fight this claim, both companies lawyered up. DraftKings’ legal hires included Boies, a prominent litigator who, among many high-profile cases, represented the U.S. Justice Department in its case against Microsoft (he won), American Express against MasterCard and Visa (he won), and Al Gore against George W. Bush (he lost).

At the hearing, Boies will argue that DraftKings has operated legally since its launch in 2012 and that Schneiderman has “misinterpreted New York gambling law,” he said on a press call with reporters last week. Boies draws a careful distinction between daily fantasy sports and poker, though many people who play both don’t see such a big difference. And he firmly believes DraftKings should be able to keep operating in New York. (Boies is a rather busy hired gun right now; he’s also working with embattled biotech startup Theranos.)

Boies spoke directly with Fortune by phone on Monday night about the highly-anticipated New York hearing. What follows is an edited transcript.

Fortune: Do you worry that with the legal scrutiny and all the press, the tide of public opinion may be turning negative? Does that affect the hearing at all?

David Boies: What’s written in the press can affect what happens in court. But my experience is that’s generally unlikely to happen. It is particularly unlikely with a judge rather than a jury. I think the judge will look at the law and look at the facts. And I think he will disregard a lot of the stuff that is in the Attorney General’s papers. For example, the Attorney General has spent a lot of time talking about what people say in chat rooms and colloquial uses of the term gambling, whether this is gambling under Nevada law… none of that matters. What matters is not whether this is gambling as people might define it in conversation, or even gambling under the law of some other state. What matters is whether this is illegal gambling under New York law, and New York law is crystal clear that in order to be gambling, you must have someone that bets on a contest of chance where the person betting does not have “control or influence” over the outcome.

There are two reasons under New York law why DraftKings customers are not gambling. First, neither the entry fee they pay, nor the prize that is rewarded, is determined based on an outcome. They pay a fixed entry fee to compete for a fixed prize. In other words, DraftKings does not stake or risk anything, and the player doesn’t stake or risk anything. They pay a fixed fee, and either win or don’t win a prize. Second, even if this were a bet, it would be a bet on a contest of skill, the outcome of which the DFS player clearly influences.

The Attorney General has to prove daily fantasy sports involves a “material amount” of chance. Even if DraftKings and FanDuel contests are “predominantly skill,” isn’t there a significant amount of chance involved when we’re talking about predicting how a football player will perform?

Material is the key. And material ordinarily means an amount that affects the outcome. But New York courts have actually interpreted “material degree” of chance to mean that chance has to be the predominant factor. So in our papers we filed, we quote cases that talk about predominance. Even if you didn’t have those cases, the very evidence that the Attorney General relies on for his advertising claim is that he says DraftKings suggests in its advertising that anyone can win and that’s not true because about 1% of players win a majority of the prizes. That can only happen if skill is determinant. The same people win repeatedly. That can’t happen if there’s a material degree of chance.

Isn’t there a major contradiction here for DraftKings? On one hand, it’s using the fact that the same people always win to argue for legality, but in its marketing it is also telling potential new users, “Anyone can win.”

Well, how many people want to play a game that is so determined by skill? I happen to think a lot of them do. My son plays this game, and he really likes how it pushes him and how he spends time and effort on it.

I think it is important the advertising be accurate, we’ve always said that. And one of the things we’ve always said is that if there are questions about the advertising, we will sit down and address them, and that’s what we’re doing right now in Massachusetts. And we were doing that in New York with the Attorney General for five weeks. And throughout those conversations, there was never a hint from the Attorney General’s office that what we were doing was illegal gambling.

Something that does not get enough emphasis is that this activity has gone on for eight years and everyone has always believed it was legal. To change the rules now, after so many people have made this investment, is wrong. If there’s going to be a change in law, it should come from the legislature, not from a single prosecutor.

Is that really the strongest argument—that it’s been around a while without being bothered? Lots of things exist for a while unbothered by the law until someone cracks down, whether it’s a certain drug, or, for example, people using bitcoin for illegal purposes.

The thing that’s different here is that buying drugs has always been unlawful. Using bitcoin to buy drugs has always been unlawful. You might figure out that bitcoins are being used to buy drugs and you can now prove it, but that’s entirely different from changing the law. People find out facts that allow them to target something. It took people a long time to learn that Enron was a fraud. But that doesn’t mean a change in the law. What happened here is not that someone is saying he just found out new facts, but basically that he just found a new law.

If you lose and DraftKings and FanDuel are made illegal in New York, do you fear a ripple effect elsewhere; will other states follow?

As a legal matter, it is pretty much specific to New York. But of course you’ve got to recognize that any time a state, particularly a state as important as New York, takes an action to shut a business down, that’s going to have an effect on the business nationally. So the ruling would have business repercussions.

The hearing will only be one hour, with DraftKings getting 20 minutes to make a case. Does that short time limit hurt you?

Yes, the time is one hour. It is a very short amount of time. And one of the problems is that the judge is currently on trial in another case, so he doesn’t really have a lot of time. He may say, “Come back next week for a day or two.” He has the option, if he wants it, of further hearings.

The burden of proof is on the Attorney General—does that make it easier for you?

Yes, that makes it a lot harder on him. I don’t think he can meet that burden. A real significant possibility is that the judge says, “I can’t decide this, I need to have a full trial. I need to hear from witnesses.” Right now we’re both just putting in affidavits. and those are written by people the parties have chosen, so they advocate one side or the other, and there’s no cross examination. I think the judge might want to hear witnesses and see them cross-examined.

Would a trial make it easier or harder for you?

A trial makes it much easier for us. In a trial, all these declarations the Attorney General is putting in from people that make conclusions with no evidence, you can really point all that out on cross examination. So I think a trial is much easier for us to win.

Do you expect to get a resolution on the hearing on Wednesday?

That is really hard to predict. If I had to guess, my guess would be probably not. But this is something that we don’t have “control or influence” over. [Author’s note: See what he did there?]

Do you feel confident?

We certainly have the facts and the law on our side. We feel good about the position we’re in. I think we look very strong. I’d rather have our hand than the Attorney General’s hand.

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For more on daily fantasy sports, check out the following Fortune video:

The Theranos mess: A timeline

Blood-testing startup Theranos operated for years in near-total secrecy, despite raising hundreds of millions of dollars at a valuation of around $9 billion. In fact, most people didn’t even know it existed until Fortune put founder and CEO Elizabeth Holmes on its June 2014 cover.

Over the subsequent 16 months, Holmes became a Silicon Valley celebrity, appearing on several more magazines, including Fortune, and she was a regular on the tech industry conference circuit. Her company, which claimed to perform dozens of lab tests on just a few drops of drawn blood, seemed poised to revolutionize healthcare and was talked about as a 2016 IPO candidate.

In the past several weeks, however, Theranos has experienced a rapid fall from grace — with serious scrutiny (and some damaging allegations) coming from the media, the government and the company’s business partners.

October 15 (morning): The Wall Street Journal stuck a giant pin in the Theranos balloon, publishing an exposé that accused the company of not actually using its own technology to conduct most of its blood tests. Moreover, The Journal said that fewer than 10% of the tests offered by Theranos were conducted via finger sticks — meaning that it usually was requiring standard venipuncture (i.e., syringe in the inner elbow and much more than a few drops of blood). The story also questions the accuracy of Theranos lab results and, most damning, suggested that the company had cheated on proficiency tests that are vital to maintaining lab certification.

Theranos immediately disputed the charges via a blog post, but the rebuttals were more rhetorical than substantive. Fortune‘s Roger Parloff, who had written our original cover story, later that day published a Q&A with Theranos general counsel Heather King, after which he concluded that there “are clearly irreconcilable conflicts between the company’s account and the Journal‘s.” He added that one thing that seems clear is that Theranos was “dialing back” its marketing promise of how “one drop changes everything.”

October 15 (evening): Elizabeth Holmes, who had spent her day in meetings, broke away to tape an interview with CNBC’s Jim Cramer. She said that the criticism is “what happens when you work to change things” and that she “was shocked that the Journal would publish something like this when we had sent them over 1,000 pages of documentation demonstrating that the statements in their piece were false.”

October 16: The WSJfollowed up with a report that the U.S. Food and Drug Administration had pressured Theranos into suspending its collection of blood via finger prick for all but one of its tests. At issue was the company’s use of so-called “nanotainers,” which the FDA considers to be an unapproved medical device. This development was not mentioned by Theranos general counsel Heather King in her Q&A with Fortune, when she was asked about the company’s current testing methods. In a blog post, Theranos argued that the “pressure” was misconstrued, and that the company was proactively and voluntarily working with the FDA.

October 18: Jean-Louis Gassée, head of Apple AAPL engineering in the late 1980s, wrote about his personal experiences using Theranos, saying that his results deviated significantly from results he received from Stanford Hospital. When he contacted Holmes, he claims to have received no reply (something Holmes later disputed). Fortune later published a similar account from a different technology executive.

October 21: Holmes appeared on stage at a tech conference being held by, of all outlets, The Wall Street Journal. She again hit back at the paper’s allegations — her questioner was not the author of those pieces, John Carreyrou — reminding the audience that nanotainers had received FDA approval to be used on one type of test, and disagreeing that the further nanotainer suspension came after an “unannounced” visit by FDA inspectors. “I read what was in the article. I thought it was false and we disagree with it,” she said.

October 23: The Financial Timesraised fresh questions about lab accuracy — mostly related to issues that had occurred years earlier — and also took issue with an earlier New Yorker profile of Holmes in which Theranos was said to have “earned income from large pharmaceutical companies, including Pfizer and GlaxoSmithKline.” In the FT piece, representatives of both Pfizer PFE and GSK GSK denied the assertion.

October 24: Walgreens announced that it will not open up any new Theranos blood-testing centers in its pharmacies until it gets more information about the ongoing controversies. The two companies in late 2013 had signed a deal with the intention of eventually expanding Theranos centers to all Walgreens WBA locations (which now exceed 8,000, before its pending acquisition of Rite-Aid). In an emailed statement, Walgreens said: “Plans to open more Theranos Wellness Centers are dependent upon both companies’ ability to reach a mutually beneficial arrangement.”

October 27: The FDA published two lab inspection reports on Theranos. In addition to finding the nanotainers to be uncleared medical devices, the reports also alleged poor record-keeping, mishandled complaints and a lack of quality audits. In response, Theranos said: “We believe that we addressed and corrected all the observations at the time of, or within a week of, the inspection and have submitted documents to FDA that say so.”

October 28: Fortune reported that Theranos had authorized the issuance of $200 million worth of new stock, just days before the first WSJ story appeared. Moreover, state filings — first uncovered by VCExperts.com — revealed that the company had previously raised far more than $400 million. In fact, the total seemed to be north of $700 million. In response, the Palo Alto-based company said that it had not actually sold any of the new $200 million of stock, saying: “We authorized the C-3 shares with plans to ensure all of our authorized but unissued shares have the proper terms.” Further clarification to that opaque explanation was not provided.

October 29: The New York Times reported that Theranos had quietly shrunk its board over the summer from 12 members to just five. So quietly, in fact, that it didn’t update its website until after the NYT story was published. Theranos had come under earlier criticism for a board that leaned heavy on older government officials like Henry Kissinger, Sam Nunn and George Schultz, and light on those with healthcare or scientific backgrounds. The slimmer board actually accentuated the problem, adding trial attorney David Boies (who had been serving as outside counsel to the company) and getting rid of Bill Foege (ex-CDC director) and Bill Frist (former U.S. senator and heart surgeon) — both of whom became part of a new medical advisory board. Kissinger, Nunn and Schultz would be on a new “board of counselors.”

November 2: Okay, this date hasn’t arrived yet. But Elizabeth Holmes will be interviewed on stage in San Francisco at 5:05 PM PT, as part of the Fortune Global Forum. As you might imagine, there will be plenty to talk about. The conversation will be live-streamed here at Fortune.com.

Bob Silver, the man David Boies called “my brain,” dead at 58

Last Monday morning Robert Silver, the longtime right-hand man of David Boies, the most famous trial lawyer in the country, was found dead in his hotel room at the Four Seasons Hotel Miami, where he had been living for about six weeks. He was 58.

Silver was a brilliant, kind-hearted man who struggled with physical and emotional challenges.

The cause of his death is under investigation, a spokesman for the medical examiner said in a voicemail, which is expected to require “a number of weeks for resolution.”

Boies, 73, and his son, Christopher, 46—also a close friend of Silver’s—said in telephone interviews that, based on conversations with police and medical examiner personnel, there were no indications of suicide or foul play, and the presumed cause of death, pending the report, is a heart attack. (The medical examiner’s office and Miami police department declined to provide any specifics to Fortune.)

Boies and his son are both partners at Boies Schiller & Flexner, the firm Boies founded in 1997 with three other partners, including Silver.

Though Silver lived in New York, in an apartment on East 57th Street, and was working on post-trial briefs for a case being heard in Washington, D.C., he was living in Miami so “he could get some relaxation when he wasn’t burning the midnight oil,” Boies explains in an interview.

A few hours after Silver’s body was found, on February 2, Boies wrote a short email to the firm announcing the death. “Bob was a great person, a great partner, and great friend,” he wrote. “Much of what I have been able to accomplish, and much of what this firm has been able to achieve, has been due to Bob.”

In the past, Boies has sometimes introduced Silver to others as “my brain.” For 30 years, Silver was the consigliere’s consigliere.

Performing his half of a uniquely productive, symbiotic relationship, Silver helped research, strategize, synthesize, and prep most of Boies’s signature trials of the past four decades. Boies then absorbed, sharpened, and executed Silver’s work in the public arena of the courtroom.

In this manner, Silver helped map out Boies’s representation of Texaco in a $10.5 billion dispute with Pennzoil in the 1980s (a lot of money at the time); defend CBS against the defamation suit of Gen. James Westmoreland, the Vietnam War commander; win $1.2 billion for the Federal Deposit Insurance Corporation from Michael Milken and Drexel Burnham Lambert for their alleged role in the S&L crisis of the 1980s and 1990s; prosecute the government’s antitrust suit against Microsoft; unsuccessfully defend file-sharing pioneer Napster against the recording industry; represent Vice President Al Gore in the historic Bush v. Gore vote-count contest of 2000; mount the suit that, in 2013, struck down California’s Prop 8, which had forbidden same-sex marriage; and, at the time of his death, press Maurice “Hank” Greenberg’s attempt to win $17-40 billion in reimbursement from the government, for allegedly having wrongfully seized his property during the financial crisis of 2008, when it bailed out AIG AIG, the insurance company he founded.

“[Silver] had tremendous intellect, tremendous objectivity, and enormous abilities and productivity,” Boies says in an interview. “But he was also one of the most decent, endearing, honest people you could imagine. He was a model of what not only lawyers, but people, should be.”

Ralph Isham, an investment banker who remained close to Silver ever since they were roommates at Yale, calls him “the most brilliant person I’ve ever known, and the kindest-hearted as well.”

Another close friend, the British-born journalist, editor, and publisher Sir Harold Evans, 86, calls him “exhilaratingly clever, a conceptual thinker of the highest order, who also nurtured a gene for altruism.”

Evans, the former long-time editor of TheSunday Times of London, and his wife, former New Yorker, Vanity Fair, and Daily Beast editor Tina Brown, met and befriended Silver on a chartered plane flight returning to New York from Boies’s 65th birthday party in Las Vegas in 2006.

In an interview, Evans says that Silver first impressed him on that flight with his insights on free speech law not just in the U.S., but also in Britain and Europe–a subject to which Evans had given much thought, due to lawsuits involving the Times.

Evans later learned, he recounts, that “Bob had a passion to help people with physical or mental disabilities.” He remembers attending a gala benefit with him at which participants were asked to sponsor a $4,000 scholarship. “Bob raised his hand,” he recalls, “which would have been generous. Then he bought a second, and then a third.”

Another long-time friend asserts that Silver exhibited “almost pathological generosity.” This friend says he once insisted on taking the lavish gifts Silver brought to a child’s birthday party back to the store, so he could restore the money to Silver’s credit card.

The source’s use of the phrase “almost pathological” is not a joke. He and several others interviewed for this article remembered Silver as a “troubled soul,” who went through depressive, reclusive phases.

Isham says Silver was sometimes “tormented,” in that he “never thought he was good enough. He was self-confident intellectually, but not at all emotionally.”

A different source, who knew him at Yale Law School, says he struggled with serious bipolar-like symptoms at that time.

Another long-time friend, who requested anonymity, asserts: “Bob had some kind of mental illness. He went through these patches and came out again, as if it never happened. Bob couldn’t quite keep it together for extended periods of time.”

This friend recounts that there were times when he received emails from Silver in which “the language would become disconnected” and “delusional.” It was “literally impossible to sense what he was talking about,” he says.

Others interviewed for this article, however, including David and Chris Boies, reject the “mental illness” label, though they acknowledge extreme, and sometimes unhealthy perfectionism.

“He would create something beyond the capacity of almost any other person,” Boies says, “and then stay up all night trying to refine it, to make it better. Those qualities, taken to the extreme, can be extremely wearing and stressful on a person. I do think he would’ve been happier if he learned to appreciate and celebrate his many accomplishments, as opposed to being driven to always try to do more.”

Silver also suffered from physical issues. He was periodically a chain-smoker, sometimes drank too much, and his weight fluctuated markedly. For the last 15 years he had suffered from severe back problems, first triggered when his chair fell off a podium at a conference. He underwent two back surgeries in the last 10 months of his life. He had been an excellent, competitive tennis player, who craved physical exercise, so the injury was torturous.

Just about a week before his death, though, Evans says he received a very upbeat email from Silver vowing to try to play table tennis with him when he returned, and promising to send Evans a draft of the court papers he was preparing.

Silver grew up in Levittown, New York, on Long Island. His father was an aeronautics engineer, of Russian Jewish extraction, and his mother was a psychiatric nurse, of Turkish Jewish background.

According to Silver’s second ex-wife, Teresa Melhado, Silver had been a gifted musician growing up, playing cello and piano and even conducting a chamber music group as a teenager.

Having skipped two grades, he entered Yale College at 16. According to those who knew him then, including Isham, he was estranged from his parents. He also rarely mentioned his siblings: a younger brother Jeffrey, who died in 2012, and a sister, Rebecca, who survives him.

In 1976, at age 20, he graduated summa cum laude with both a bachelors and masters degree the same year. He embarked on a Ph.D. thesis in philosophy, but switched before completion to the joint degree program at Yale Law School and Yale School of Management.

In 1981, he served as a summer associate at Cravath Swaine & Moore—then one of the country’s top two or three corporate law firms in terms of both prestige and partner earnings. Boies, who had recently returned to Cravath after a period as chief counsel for the U.S. Senate Judiciary Committee, selected Silver to work with him based on his extraordinary resume. They clicked.

Silver returned to Yale, picking up his J.D. and M.P.P.M (master’s of public and private management) in 1982. He spent a year at a coveted clerkship for U.S. Court of Appeals Judge Jon Newman, and then returned to Cravath full-time in 1983.

There, he worked for several top partners, in addition to Boies, including the firm’s legendary litigator Thomas Barr. Though all Cravath associates worked dauntingly long days, Silver developed a reputation for putting in frightening, nearly unimaginable hours, a former colleague recounts.

In 1988, he left Cravath to become a faculty fellow at Yale Law School. Cravath partner Barr, a Yale Law alumnus, helped arrange this placement at a time when Silver was struggling with bipolar symptoms, according to a person who knew him at that time. (Barr died in 2008.)

Later, Silver served relatively short stints with two other first-rate law firms, and then spent about a year-and-a-half on his own, consulting for several firms.

While at the second of those law firms, in 1993, Silver married Eva Assimakopoulos (now Eva Lana), but the couple divorced in 1995.

On May 14, 1997, Boies did the unthinkable for a Cravath partner of that era: He left to form his own firm. Silver joined him the next day.

“The first person I got to work with me was Bob,” Boies says.

Three months later, Boies and Jonathan Schiller formed Boies Schiller, with Silver and William Isaacson as the only other partners. (Donald Flexner joined the firm as the third name partner in December 1999.)

When the firm formed an executive committee in 2001, Silver was named to it, and he served on it till his death. (Boies Schiller & Flexner today has about 250 lawyers. Last year it was the ninth most profitable law firm in the country, according to The American Lawyer, with an average partner making nearly $3 million a year.)

In the early days of Boies Schiller, Silver was the person reporters like me went to first, when we wanted to gain entrée to Boies, or to understand his cases. Silver was available at every hour of the day, courteous, good-humored, impeccably dressed, unpretentious, never arrogant, never condescending, and astoundingly articulate. Later, as the firm grew, and hired a spokesperson, Silver became less visible to reporters.

In August 2009, Silver’s neglected private life took a joyous turn. At a wedding at the Southampton home of Louise Grunwald—whose second husband, Henry, was once editor-in-chief of Time Inc.—Silver married Teresa Melhado, a widow. Melhado had been a lawyer in Texas and a financial reporter until her first marriage.

“I adored him,” says Melhado of Silver, in an interview. “He was the sweetest, kindest man. I never heard him say anything mean about anyone.”

“He was just brilliant,” she continues, “but really humble. He would come out with the most amazing things. He’d reel off a quotation from a poet you never knew he’d read. All this knowledge, but he wasn’t trotting it out. It would just pop out by accident.”

Melhado’s first husband had died young, of brain cancer, leaving her with three children. Silver became their surrogate father, she says, “jumping in with both feet.”

“They adored him,” she continues. “It was mutual.”

Melhado asks that I not portray Silver as a “drone” or “grind” who slaved away behind the scene. He was stylish, and funny, a joy to be with, she says—“a snappy dresser, sensitive to esthetics.”

“He loved the show Mad Men,” she says, “with the well-dressed, chain-smoking men of that era. Huge lunches of red meat. That was Valhalla for him.”

By all accounts the marriage made Silver extremely happy. But the couple separated in December 2011, and divorced in January 2012.

It was her decision, and it crushed him. (She declines to discuss the reasons.)

“He was mystified as to why it broke up,” says Boies.

Last September, the case known as Starr International v. United States, in which Boies’s client Hank Greenberg is attempting to recover billions of dollars from the government, went to trial in Washington, D.C. Though in the past Silver often sat at counsel table when Boies tried a case, passing him notes, he did not do so this time. Though he had prepared for the trial for about three years, he did not attend an hour of it. This was so, even though the case had tantalizing box-office appeal to even the most casual observer of current affairs, with Boies cross-examining a Who’s Who of the financial crisis, including Hank Paulson, Tim Geithner, and Ben Bernanke.

“He would have loved to come and sit at trial,” Boies says, in explanation. “But he felt it was much more critical to get the preparatory work done,” he says. “Bob was always someone who made decisions never based on what was in his personal interests. He was totally focused on what was best for the case. . . . Time and time again, he put the interests of the firm, my interests, the interests of the case, the interests of the client, way ahead of his own.”

In December, after Boies Schiller held its annual firm meeting in Key Biscayne, Silver chose to stay in a hotel in Miami while working on post-trial submissions in the Starr case. That’s where he was when his body was found last Monday.

In our conversation, Boies noted that sometimes, when he and Silver were relaxing, at a dinner or a ballgame, he’d urge Silver to take more time off to enjoy himself. “See how much fun you’d have?” Boies would tell him, he recalls.

On one occasion, Boies says, Silver responded with a joke.

“If I could take time off more easily,” Silver said, “I’d be normal. And you wouldn’t want me normal, would you?”

Correction: The original version of this article mistakenly said that Silver’s first marriage occurred while he was still at Cravath. In fact, as the text now reflects, his first marriage was later, in 1993, and ended in divorce in 1995. I regret the error.

Former Treasury Secretary Geithner defends AIG bailout in court

(REUTERS) Former U.S. Treasury Secretary Timothy Geithner on Tuesday defended the government’s rescue of American International Group Inc in September 2008, saying it was necessary to prevent the country from plunging into a second Great Depression.

Geithner’s comments came in testimony in the trial of a lawsuit brought by Hank Greenberg, a major AIG shareholder until the bailout and the company’s chief executive until 2005. He contends the terms of the government $85 billion loan to AIG cheated its shareholders.

While few legal experts expect Greenberg’s lawsuit to be successful, it has served to reopen a fraught chapter in American economic history and the outcome could shape how regulators respond to future crises.

Greenberg’s lawyer, star litigator David Boies, spent much of Tuesday morning introducing emails Geithner wrote and received that discussed AIG’s deteriorating condition when he served as president of the New York Federal Reserve in the chaotic days around the initial bailout offer.

Many of the emails were sent by other New York Fed officials after midnight, underscoring the round-the-clock effort the government undertook to contain the 2008 financial crisis.

Boies has sought to portray the government as making ad hoc decisions that unfairly punished AIG and is arguing that the terms the New York Fed required as part of the bailout, including a nearly 80 percent stake in the company, were illegal.

Later on Tuesday, Geithner later testified that some of the terms, including the high interest rate, were in part based on a proposal from JPMorgan Chase & Co. and Goldman Sachs Group Inc, but he said he could not remember analyzing the basis for the interest rate. The proposal came from a term sheet for a possible private sector rescue, but that rescue never materialized.

The exchange grew testier as the afternoon wore on, as Boies tried to push Geithner to say the Fed had worked to avoid an AIG shareholder vote in connection with the rescue, or that regulators had failed to follow up on legitimate private sector efforts to help AIG. Geithner responded that he did not know about efforts related to shareholder votes and that he would have seriously considered any realistic proposals from private investors.

Greenberg through his Starr International Co, which was AIG’s largest shareholder with a 12 percent stake, sued in 2011 seeking more than $25 billion in damages.

Geithner took the stand on the seventh day of the trial, one day after his predecessor as Treasury secretary, Hank Paulson, told the same courtroom that AIG shareholders were singled out for punishment but that such terms were necessary to protect against others taking reckless risks.

On Tuesday, Boies spent time reading aloud comments Geithner made in a book he wrote about the 2008 financial crisis called “Stress Test,” focusing on the consequences AIG’s collapse could have on the broader financial system.

“It sounds like you are quoting me,” Geithner said on multiple occasions after hearing a passage from Boies, who cited the book with enough frequency that the judge overseeing the case asked if he should go get his own copy at Barnes & Noble .

The trial is unfolding before Judge Thomas Wheeler of the U.S. Court of Federal Claims in Washington, who will decide the case.

Geithner, who appeared relaxed but whose answers grew shorter and more deliberate later in the afternoon, did attempt to walk back some comments he had made in the past about the AIG bailout, including statements that the insurance company’s shareholders had been “effectively wiped out” and that the government had essentially “nationalized”AIG.

That was “not the most precise language,” he said, to laughter in the courtroom.

Geithner is expected to continue his testimony on Wednesday, when government lawyers will have an opportunity to question him.

Russia is a no-show in its suit against the Bank of New York

A weird case got weirder this morning, when the Russian Federal Customs Service failed to send any representative at all to appear in a Moscow court for the resumption of pretrial hearings in its $22.5 billion suit against the Bank of New York Mellon BK, according to a lawyer for the bank.

According to Damien J. Marshall, a Boies Schiller & Flexner partner representing the bank at the hearing, Judge Lyodmila Pulova explained that the customs service had faxed her a petition this morning requesting a delay until Oct. 15, and explaining only that the the service’s lawyers were busy with other matters.

Overruling Russia’s request, the judge agreed to hear testimony anyway from two of the bank’s U.S. experts — including former attorney general Richard Thornburgh — who had traveled to Russia just for the hearing, according to Marshall. When the witnesses had finished (with no cross-examination, obviously), Judge Pulova put off continuation of the hearing until Nov. 13.

An email and voicemail message for Steven C. Marks of Miami’s Podhurst Orseck, the lead lawyer for Russia in the case, were not immediately returned. The voicemail was left at Marks’s Moscow hotel. (The receptionist confirmed that Marks had checked in.)

The suit stems from the conduct of a rogue Bank of New York vice president who pleaded guilty in February 2000 to having helped depositors of a Russian bank smuggle about $7.5 billion out of Russia from 1996 to 1999 through Bank of New York accounts. The bank was never charged in connection with the case, but did enter into a non-prosecution agreement on Nov. 8, 2005, in which it agreed to pay a $14 million fine, acknowledged various regulatory lapses, and accepted “responsibility” for what had happened.

The suit is unusual in that Russia has brought it under the American civil RICO statute, but has filed it in one of its own commercial courts, known as the Arbitrazh Court for the City of Moscow. There is substantial question among experts on the Russian legal system as to whether a Russian arbitrazh court has the judicial independence necessary to rule against the Russian government in a high-stakes case.

Here is a feature story I wrote about the case for Fortune’s Sept. 29 issue.

The issue at the pretrial hearings is whether the arbitrazh court — which, as a commercial court, has no jurisdiction to interpret criminal laws (even Russian criminal laws) — can adjudicate a civil RICO case, where liability of the bank hinges upon the court finding that it has violated U.S. criminal laws.

Russia had hoped to argue that the bank had already admitted criminal liability by entering into the nonprosecution agreement, and that, therefore, the Russian court would not have to interpret any criminal laws. However, in recent weeks, as explained in this update last week, the Manhattan prosecutors who investigated the bank have disputed Russia’s claim, stating in a letter that the bank never admitted “criminal culpability.”

At today’s hearing, RICO expert Gregory Joseph presented an 80-slide PowerPoint presentation to the court, explaining why he believes that the court’s task would inevitably require it to interpret U.S. criminal laws. His testimony was followed by that of former attorney general Thornburgh, who discussed the meaning of the non-prosecution agreement and the Manhattan prosecutors’ recent letter of clarification, and said that the bank had never been charged with, let alone admitted, criminal wrongdoing.

In a phone interview, the bank’s lead counsel, Jonathan Schiller of Boies Schiller & Flexner, acknowledges that he does not know the meaning of today’s events, but says they might reflect Russia’s “reconsideration of the claim and thoughtful review . . . of whether to proceed with the case. . . . The evidence presented today established the false and inaccurate assertions by the plaintiff’s U.S. attorney at the heart of the case, and made clear that the Bank of New York did not admit or engage in criminal wrongdoing as the plaintiff’s lawyer has represented in court.”

U.S. prosecutors refute Russian claim in suit against Bank of New York

Notwithstanding frequent assertions to the contrary by lawyers representing Russia in that nation’s $22.5 billion lawsuit against the Bank of New York Mellon BK, the bank has never admitted “criminal culpability” for a rogue employee’s criminal wire-transfer scheme in the late 1990s, according to a letter recently written to the bank by the federal prosecutor’s office that investigated the bank.

The U.S. Attorney’s Office for the Southern District of New York (in Manhattan) — which investigated the scheme from 1999 until 2006 — made the statement in this letter, dated July 29, which Fortune obtained Tuesday.

The clarification was prompted by the highly unusual case that the Russian Federal Customs Service filed against the Bank of New York Mellon in May 2007. Though the suit is being brought under America’s civil RICO statute — the Racketeer Influenced and Corrupt Organizations Act of 1970 — Russia filed the case in one of its own commercial courts, known as the Arbitrazh Court for the City of Moscow. It appears to be one of the first times anyone has ever filed a RICO suit in a court outside the United States.

As I wrote in this feature story about the case in the Sept. 29 issue of Fortune, there is considerable doubt among experts on the Russian legal system about whether such courts have the judicial independence needed to rule impartially in a high-stakes case in which the Russian government is a litigant.

The suit stems from the conduct of Lucy Edwards, who had been a Bank of New York vice president — one of about 1,700 at that time — when she was terminated in August 1999. Edwards and her husband, Peter Berlin, pleaded guilty in February 2000 to having helped depositors of a Russian bank smuggle about $7.5 billion out of Russia from 1996 to 1999 through accounts Berlin had opened, with Edwards’ assistance, in a Bank of New York branch in Manhattan. The bank was never charged in connection with the case, but did enter into a non-prosecution agreement on Nov. 8, 2005, in which it agreed to pay a $14 million fine, acknowledged various regulatory lapses, and accepted “responsibility” for what had happened.

In that story I reported that federal prosecutors had, in August of this year, issued an amended press release to replace the one that had originally announced the bank’s entry into the non-prosecution agreement. The original press release had, among other things, stated that the bank, by entering into the agreement, “has admitted its criminal conduct.” Steven C. Marks of Miami’s Podhurst Orseck, the plaintiffs lawyer who is acting as Russia’s lead lawyer in the case, has frequently cited the release as proving that the bank has admitted criminal culpability. For instance, at a teleconference he set up for bank analysts July 16 (the evening before the bank’s second-quarter earnings announcement), he cited the release in arguing that the bank had already admitted “criminal responsibility for money-laundering.” (You can listen to the teleconference here.)

But the nonprosecution agreement had actually resolved two criminal inquiries — one pertaining to Edwards’s conduct and the other pertaining to a completely unrelated fraudulent loan scheme aided by managers at a Bank of New York branch in Island Park, N.Y., on Long Island. The amended release clarified that the bank had only admitted criminal conduct in connection with the Island Park inquiry. (Here’s the original release; here’s the amended release.)

As reported in the feature story, when I informed Marks of the amended release, Marks expressed exasperation at the “power” of the bank to “influence” the Justice Department to “potentially help the wrongdoer” in pending civil litigation. But he also insisted that the non-prosecution agreement still amounted to an acknowledgment of criminal conduct by the bank, because the bank had acknowledged “responsibility” for what had happened in that document.

However, in the letter Fortune obtained yesterday and is publishing today, the government appears to reject that argument as well, writing: “While the Bank accepted and acknowledged responsibility for the conduct detailed in the [non-prosecution agreement,] the Bank did not admit criminal culpability with respect to the subject of the SDNY USAO investigation,” i.e., the probe relating to Lucy Edwards.

The letter also notes that “statements in the Press Release . . . are not themselves part of any agreement with the Bank.”

As of this writing, Marks has not yet responded to an e-mail seeking comment on the July 29 Justice Department letter, which I sent to him yesterday at about 12:30 pm Eastern Time.

Why does it matter if the bank has admitted criminal conduct? Two reasons. The first relates to a statute of limitations hurdle Russia faces. Lucy Edwards pleaded guilty in February 2000, yet Russia did not file its suit until May 2007. (The statute of limitations for civil RICO suits is four years and, according to the Bank’s lawyers, the applicable Russian statute is even shorter.) Marks has responded that, whether Russian or U.S. law applies, the statute of limitations is subject to a so-called “discovery rule”; i.e., the statute begins running only once a party discovers that he’s been injured (and by whom).

Under that rule, Marks has argued, the statute should not start running until Nov. 8, 2005, when the bank signed the non-prosecution agreement, because that’s the first time Russia discovered that the bank had been criminally involved. Since the bank had until then always protested its innocence, Marks believed that when it entered into the non-prosecution agreement it suddenly reversed its position. This purported about-face is what, he had argued, reset the statute-of-limitations clock. As he argued at the July 16 teleconference “The bank had . . . represented that it had no role in the criminal activity . . . until November 2005.” That was “the very first time” Russia “became publicly aware of involvement by the bank.” (Listen to “Podcast #3 on Marks’s site, available here.)

The prosecution’s clarification seems to wipe out that argument, since no change actually occurred in the bank’s position. (As a backup argument, Marks also contends that one type of relief he seeks under RICO — “disgorgement” — is an “equitable” form of relief, which is not subject to a rigid statute of limitations, but subject only to a more flexible doctrine of time limitation known as “laches.” But most U.S. courts begin their “laches” analyses by looking to the most analogous statute of limitations, which probably just brings Russia back to civil RICO’s four-year limit. There seems, moreover, to be no good “equitable” reason to grant Russia leniency here, since, as explained in my feature story, U.S. prosecutors actively sought the assistance of Russian authorities with their investigation back in 1999, but appear to have been largely rebuffed at the time. For whatever reason, Russian officials at the time were downplaying the gravity of what Edwards had done, and maintaining that most of her illicit wire transfers had not violated Russian law.)

The second reason that the bank’s purported admission of criminal conduct was important to Russia’s case has to do with jurisdiction. The court in which it has filed its case — the arbitrazh court in Moscow — is a commercial court, and is not authorized to interpret “public laws,” which include criminal laws (even Russian criminal laws, let alone American criminal laws). Russia had hoped to circumvent this problem by arguing that there was no need for the arbitrazh court to interpret U.S. criminal statutes, since the bank had already admitted criminal culpability. Thus, the arbitrazh court would only be required to interpret the civil aspects of the RICO law, which were more arguably within its jurisdiction.

Again, this argument would seem to be weakened, if not obliterated, by the recent clarification made by U.S. prosecutors.

Of course, all of this only matters if the court hearing the case has the judicial independence to rule against the Russian government — a big if.

In Google-DoubleClick inquiry, David Boies’s firm represents AT&T

When Google (GOOG) announced its $3.1 billion proposed acquisition of DoubleClick on April 13, recovering monopolists Microsoft (MSFT) and AT&T (T) were the most vociferous complainants urging regulators to scrutinize the deal.

Alluding to the irony, I asked Microsoft general counsel Brad Smith last week if he’d be hiring David Boies, of Boies Schiller & Flexner, to counsel his company on the antitrust issues. It was Boies, of course, who had sliced and very nearly diced Microsoft seven years ago as lead trial attorney for the government in its monopolization case against Microsoft.

“Honestly, it hadn’t occurred to me,” Smith said, but he sounded intrigued, and asked me to have Boies call him if he seemed interested after I spoke to him.

Alas, I’ll be getting no referral fee. By the time I finally got through to Boies today, his partner Donald Flexner had already been retained by long-time client AT&T for the same purpose. Flexner could not immediately be reached for comment.

For now, regulators are doing their initial 30-day inquiry. In mid-May they will decide whether to make a “second request,” which is what would trigger a deep dive analysis that might last six to nine months. During that stage the regulators-who could be either at the Department of Justice or Federal Trade Commission-would typically seek information and submissions from interested parties, like AT&T. Finally, if the regulators ultimately approve the deal, private parties like AT&T have the right to file their own suits to try to block the merger, though you don’t see that tried very often.